Date: 20020328
Docket: IMM-2039-01
Neutral citation: 2002 FCT 354
BETWEEN:
GABRIELLA KRISZTINA RADULY,
KRISZTINA BARANYI, ANDRAS RADULY,
ANDRASNE RADULY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated April 12, 2001, wherein the Board determined that the applicants were not Convention Refugees.
[2] The issues are: 1) whether the Board erred in law with respect to state protection in Hungary; 2) whether the Board erred in fact in finding that there was a presumption of state protection for Roma in Hungary; and 3) whether the decision was patently unreasonable.
[3] The following findings of the Board are relevant to the question of whether there was state protection for Roma in Hungary. At pages 5 and 6 of the reasons the Board states:
The panel finds that the claimants have established their identity as Roma through their personal testimony.
...
We find the claimants to be generally credible and trustworthy. They gave their evidence in a forthright and spontaneous manner and made no apparent attempts to mislead the panel. We note they were given numerous opportunities to embellish their evidence when leading questions were asked, but to their credit, they did not do so.
The Board went on to say:
We are aware that the Roma, as a people, have had a sorry history in Hungary. ... They have experienced discrimination, humiliation and intolerance. The protective apparatus of the state, through fear and ignorance, is often not accessible to them.
Then at pages 8 and 9 the Board states:
While this panel is of the view that the Roma minority in Hungary as a whole have faced and continue to face discrimination that is virtually institutionalized, a sad fact confirmed by the country conditions documents in evidence before us, we are obliged, given our finding that not all Hungarian Roma are similarly situated, to assess the merits of each individual claim regardless of how many times in the past we have determined that the discrimination and harassment other claimants likely faced had reached the threshold of persecution.
The applicant submits that having said this, the Board was under a duty to explain why this case is different. The Board went on to say:
The panel accepts that the claimants experienced discrimination in Hungary. The panel notes that the claimant has testified about the discrimination her daughter faced in school which was similar to her own experiences at school, the discrimination her parents faced in the workforce, the discrimination the family faced in social situations. Such discrimination is amply corroborated in the documentary evidence.
...
In our view, the evidence does not support the contention that the claimants' core human rights have been denied in a systematic way. Turning to the claimant's evidence it is unfortunate that the claimant's daughter learnt of discrimination in school. However, the evidence does not indicate that its impact on her was such as to be persecution.
...
No persuasive evidence was adduced that what these particular claimants experienced in Hungary would amount, even cumulatively, to past persecution and that what they likely face should they return to Hungary would reach the threshold of persecution.
...
We simply find no persuasive evidence to support the proposition that the Roma population of some 500,000 spread throughout Hungary is persistently and systemically targeted for serious harm by racists or skinheads or other agents. We acknowledge that there are reports that violence against the Roma is increasing. It is not contested that attacks continue to occur against the Roma, or that the number of such attacks is difficult to determine and that such attacks are likely under-reported.
They also accepted that the applicant's two brothers had been attacked by skinheads. The brothers were granted refugee status. However, there was no evidence before the Board that the applicants were beaten or persecuted. At page 13 of the reasons the Board states:
The panel concludes that the claimant's fear of skinheads and racists does not constitute a well-founded fear of persecution at this time.
Given our above findings we do not consider the issue of state protection to be of major significance in this claim. Even if we were to find that the claimants' fears are well-founded, we find that the Hungarian state is making serious efforts to protect the rights of the Roma, and that reasonable and adequate state protection is available to the claimants.
[4] In my view the Board was correct in saying that the issue of state protection was not of major significance to this claim since their findings were reasonable with respect to the applicants. In my view the Board is not saying that the issue of state protection is not a major problem, but rather the Board is saying that since they had found no persecution, the Board does not need to look at the question of state protection. However, if the Board was incorrect in finding that the applicants were not subject to persecution, I do have some concern about the second sentence in the above quotation. The Board had stated earlier at page 11:
The documentary evidence suggests that relations between the Roma community and the police deteriorated in the last two years despite pressure from western governments and human rights groups. Police abuse of Roma in Hungary was noted by the Organization for Security and Cooperation in Europe (OSCE) and by the Council of Europe. The United States State Department's Country Reports on Human Rights Practices for 1999 noted that Roma and foreigners in Hungary were subject to discrimination and violent police abuse. However, absent any details concerning how many Roma were mistreated and how many police officers were involved and where the abuses occurred, and relevant demographic and comparative data, there is not sufficient evidence in these reports to come to any conclusion other than that some police officers violently abused some Roma in the last two years and that the reporting organizations found it significant and rightly expressed their concern.
This goes to the factual basis of what was said. I do not find that there was a legal error with respect to the comments made by the Board.
[5] There are some factual concerns raised by the Board's statement at page 6 of the reasons where the Board states:
We are also aware that in the post-Communist period, the Hungarian government has taken more initiatives than any other East European government to address the Roma issue. While the results have not met the expectations, these initiatives prevent the rise of any notion that the Roma is a persecuted minority in Hungary. However, cases of individual persecution occur and mostly on cumulative grounds.
The Board quotes the Human Rights Watch World Report 2001 as authority for this statement. However, the Human Rights Watch World Report 2001 did not say that the expectations were not met. Rather, it said:
Most of the objectives in the Hungarian government's medium term plan for Roma rights were unmet at the end of 2000,
The same Human Rights Watch World Report 2001 stated: "the police themselves commit violence against Roma". In the transcript, counsel for the applicant quoted the following from the Human Rights Watch World Report 2000: "... systemic human rights violations by State actors ..." the police; "... the random police abuse of Roma." and this theme continues in the Human Rights Watch World Report 2001. The Human Rights Watch World Report 2001 clearly states that because the medium term plans for Roma rights were not met, it ended up "... resulting in continuing discrimination in housing, employment, education and police abuse." I note that it refers to discrimination and not persecution, except with respect to police abuse.
[6] The applicant's counsel submits that unlike in Ward where it states that it is presumed in a democratic state that state protection is available, because of the documentary evidence here this presumption cannot be made in the case of Roma in Hungary. Accordingly, the clear and convincing test set out in Ward would not have to be met. However, because the Board found that there was no persecution of the applicants, it is not necessary to answer the question of whether there might be a case where the presumption that democratic countries are able to protect its citizens is inapplicable because there is substantial documentary evidence that a certain minority are systematically targeted by the state. Accordingly, I do not have to make a finding of fact as to whether the actions of the police in Hungary against the Roma minority are sufficiently abusive to eliminate the presumption. I do not intend to make a finding of fact under these circumstances.
[7] The third argument was that the decision was patently unreasonable. The applicant submits that the panel did not ignore evidence but that they put an unreasonable requirement on the applicants in stating that they should be required to provide details on how many Roma are mistreated, how many police officers were involved in police abuse, where the abuses occurred, and also to provide relative demographic and comparative data. Again, because this relates to state protection, I do not need to decide whether this an unreasonable requirement but I would certainly have some hesitation in approving such an onerous requirement. The applicant also submitted that it was unreasonable for the panel not to explain why the applicant's brother could be found to be a refugee but the applicant was not. The applicant's brother was beaten up by the police but there was no similar evidence in the case before me. Therefore, they are not necessarily similarly situated and the case of Salibian v. Canada (Minister of Citizenship and Immigration) [1990] 3 F.C. 250 (C.A.) is inapplicable. I also do not agree that the Board was required to indicate why these Roma were different from the other Roma who were found to be persecuted. There is no case to be made that all Roma are persecuted and automatically become refugees. It is still up to the applicants to show that they were persecuted. If there is a considerable number of a minority who are persecuted, it will certainly go toward the objective test of showing that the applicants would be subject to persecution but there is both an objective and subjective test of persecution.
[8] The application for judicial review is dismissed.
[9] A certified question was proposed with respect to whether the presumption that democratic countries are able to protect its citizens should not be applicable in the face of substantial documentary evidence that one segment of the citizenry is systematically targeted by
the state. Since the answer to this question is not determinative of the case on the facts before me, I have not certified a question.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
March 28, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.:
IMM-2039-01
STYLE OF CAUSE:
Gabriella K. Raduly and others v. M.C.I.
PLACE OF HEARING:
Toronto, Ontario
DATE OF HEARING:
March 21, 2002
REASONS FOR ORDER BY:
The Honourable Mr. Justice McKeown
DATED:
March 28, 2002
APPEARANCES:
Mr. George J. Kubes
for the Applicants
Mr. John Loncar
for the Respondent
SOLICITORS OF RECORD:
Mr. George J. Kubes
Toronto, Ontario
for the Applicants
Mr. Morris Rosenberg
Deputy Attorney General of Canada
for the Respondent